Justice Scalia's recusal in the Pledge Case

[usregimechange]

I think he wants a constitutional amendment so that Congress and the shrub can repeal part of the First Amendment. One is already in Congress. Then they can have all the government approval for their beliefs that their little heart desires.

"It is error alone which needs the support of government. Truth can stand by itself." ~Thomas Jefferson

Join Mike Newdow at his web-site: http://restorethepledge.com/

[ret5hd]

1. maybe someone knows the answer to this:

Back in my long forgotten gov't class in college, it seems that i
remember the prof. stating that "one of the dangers of a
constitutional convention is that, after a convention is called,
anything in the constitution is subject to change, not just the
amandment in question".

Is this true? Do I remember correctly? Could the shrub* admin,
if they got support from enough states to call a convention,
have the ability to completely rewrite the constitution to their
needs?

[Dookus]

2. it doesn't require a constitutional convention

to amend the constitution.

A constitutional convention would be a nightmare circus, and I don't think either party wants to get into that. I could be wrong, though.

However, we don't need a convention to pass an amendment.

[ret5hd]

3. ahhh, someone who at least knows what i am referring to...

could you refresh my memory on this? under what circumstances would a constitutionl convention be called?

[goobergunch]

4. It could be called...

if 38 state legislatures formally requested one.

[Padraig18]

5. 2/3 of the state legislatures can call for a convention.

"Article V: The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate. "

[Dookus]

6. from..

www.usconstitution.net

The Amendment Process

There are essentially two ways spelled out in the Constitution for how it can be amended. One has never been used.

The first method is for a bill to pass both halves of the legislature, by a two-thirds majority in each. Once the bill has passed both houses, it goes on to the states. This is the route taken by all current amendments. Because of some long outstanding amendments, such as the 27th, Congress will normally put a time limit (typically seven years) for the bill to be approved as an amendment (for example, see the 21st and 22nd).

The second method prescribed is for a Constitutional Convention to be called by two-thirds of the legislatures of the States, and for that Convention to propose one or more amendments. These amendments are then sent to the states to be approved by three-fourths of the legislatures or conventions. This route has never been taken, and there is discussion in political science circles about just how such a convention would be convened, and what kind of changes it would bring about.

Regardless of which of the two proposal routes is taken, the amendment must be approved by three-fourths of states. The amendment as passed may specify whether the bill must be passed by the state legislatures or by a state convention. See the Ratification Convention Page for a discussion of the make up of a convention. Amendments are sent to the legislatures of the states by default. Only one amendment, the 21st, specified a convention.

[Dookus]

7. The question I have...

is WHO are the attendees of the convention if one is called? The constitution says:

Article. V.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.


But does it mean that the current congress are the participants, or do the states send special delegates to the convention?

[bushclipper]

8. I think this is important...

If I'm not too terribly mistaken, this could result in a 4-4 tie.

[Dookus]

9. yes, it could....

rather likely, in fact.

In that case, the lower court ruling is allowed to stand. In this case, it means "Under god" is out.

[usregimechange]

13. Yes and...

if that happened it would affirm the 9th Circuit. The ruling would stand. That may very well happen.

[damnraddem]

10. Yes, restore the Pledge:

'I pledge allegiance to the flag, and to the republic for which it stands, one nation, indivisible, with liberty and justice for all.' That's how Bellamy wrote it, before know-nothings started fiddling with it.

[The Backlash Cometh]

11. If Scalia recuses himself, then this is going nowhere.

With 8 judges presiding, it's likely to go 4-4. And if it does, then we don't have a binding decision. Right?

[Dookus]

12. it's binding...

if the vote is tied, the lower court decision stands.

[usregimechange]

14. I can't imagine...

Justice Breyer, Stevens, Souter, or Ginsburg NOT affirming. We don't even need O'Connor this time! We have to prepare the country that the Pledge is not going to be mandated (teacher led) anymore. They certainly aren't ready for it. Of Course, they weren't ready for Brown v. Board of Edu. either.

[Mike Niendorff]

15. Looks that way to me, too.

In short: a calculated political trap.

To put it another way: after Bush v. Gore, it should be vividly apparant to every observer that Antonin Scalia does not overly concern himself with the integrity of the judicial process. Fixing judicial outcomes on behalf of the Republican Party, though? Yes, that's something that Mr. Scalia is more than comfortable with doing.

Get your flak jackets on, folks. 2004 is looking nastier by the minute.


MDN

[The Backlash Cometh]

16. Textualist are undemocratic by definition.

As it was explained to me, the "liberals" on the court look for the legislative intent when reasoning their decisions. What exactly did congress have in mind and does it fit-in with our constitution?

The textualist, on the other hand use the excuse of rhetoric to follow their own conservative agendas. In Scalia's case, he's a fire and brimstone kind of judge and the more power he gives to the police, the happier he is. A strong criminal justice system with stiffer penalties is his personal agenda.

My point is that we vote for our legislature, but are unable directly to vote for the judges on the Supreme Court. When the system works properly, it is the legislature's job to make the laws, so our votes should directly be represented by their actions in congress. On the other hand, the Supreme Court's job is to ensure that those laws remain constitutional. What laws they make are only incidental to their judicial review. But with Scalia conservatives, we now have two branches of government creating laws. If textualist are not concerned with legislative intent, which they admit they are not, then they are concerned with their own agendas and are undermining our democratic process. Therefore, Textualist are undemocratic by definition. IMHO.

[msmcghee]

17. Is it possible that . .

. . by allowing the circuit court decision to stand, they hope to enrage the Christian right enough to assure their turnout in massive numbers next year. I know some of them have been dissapointed lately in Bush's* performance on their behalf and Rove is trying to mend that with new impetus in the faith-based arena.

Also, I expect the puke congress to immediately introduce bills that would try to overturn the interpretation. I know that would not pass muster with another 4/4 court, but Scalia would not have to recuse himself the next time around.

Even if there was no possible SC haven for a new law mandating the "in God" text, the furor in the congress as it was debated this winter and on into the election year would give the pukes ample opportunity to brand Dems as the un-Godly heathens they say we are. (In my case true.)

But in fact most Dems would cave and jump on board with the bible thumpers on that one - those who stood on principle would face a withering attack if they were up for re-election. Maybe all that makes this a wise move on Scalia's part.

Just some thoughts.

(Please note that my reference to bible-thumpers is not to demean sincere Christians who support the separation of church and state.)